Citation Nr: 1305196 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 09-15 009 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD) and bipolar disorder. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from November 1945 to October 1947. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2008 rating decision in which the RO denied the petitions to reopen claims for service connection for bilateral hearing loss and for tinnitus, granted the petition to reopen the claim for service connection for PTSD, and denied service connection for PTSD, on the merits. In May 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in March 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals ) in April 2009. In April 2009, the Veteran requested a hearing before a Decision Review Officer (DRO) at the RO. A July 2009 letter informed him that his hearing was scheduled for August 2009. Although the hearing notification was not returned by the U.S. Postal Service as undeliverable, the Veteran failed to report for the scheduled hearing, and has not requested rescheduling of the hearing. As such, his DRO hearing request is deemed withdrawn. In his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. A June 2011 letter informed the Veteran that his hearing was scheduled in August 2011. Although the hearing notification was not returned by the U.S. Postal Service as undeliverable, the Veteran failed to report for the scheduled hearing, and has not requested rescheduling of the hearing. As such, his Board hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). In October 2011, a Deputy Vice Chairman of the Board granted the motion of the Veteran's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). In November 2011, the Board reopened the Veteran's claims and remanded them for additional development, to include VA examinations and opinion. The Board has recharacterized the matter of service connection for PTSD to more broadly encompass service connection for a psychiatric disability, to include PTSD and bipolar disorder-as reflected on the title page-consistent with Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). The Board notes that the Veteran's original VA claims file has been lost, and that the current file is a rebuilt one. In addition to the paper claims file, there is a paperless, electronic (Virtual VA) file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The Board's decision addressing the claims for service connection for bilateral hearing loss, and for tinnitus is set forth below. The claim for service connection for a psychiatric disability, to include PTSD and bipolar disorder, is addressed in the remand following the order; that matter is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. During military service, the Veteran was an aircraft handler, an occupation recognized as likely involving significant noise exposure; he also served on the USS Ranger and the USS Saipan. 3. Although there is no indication that hearing loss or tinnitus was documented during service, audiometric testing reveals current hearing loss in each ear to an extent recognized as a disability for VA purposes, and the Veteran asserts that he continues to currently experience persistent tinnitus. 4. Competent, credible, and probative lay evidence indicates that the Veteran experienced ringing in his ears during service, and diminished hearing thereafter, and that these problems have essentially continued, to date. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing senorineural hearing loss are met. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385, 3.655 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the favorable disposition of the claims for service connection for bilateral hearing loss and for tinnitus, the Board finds that all notification and development actions needed to fairly adjudicate these claims have been accomplished. II. Factual Background The Veteran claims that his tinnitus and bilateral sensorineural hearing loss are the result of noise exposure during military service as an aircraft handler aboard the USS Ranger and the USS Saipan. At the outset, the Board notes that the Veteran's service treatment records are not of record; the current claims file has been rebuilt. The Board is aware that in service connection cases in which service records are not available (through no fault of the Veteran), VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In his August 2007 claim, the Veteran reported that he has experienced ringing in his ears and difficulty hearing since service. VA treatment records dated from February 2007 to present documents bilateral hearing loss and complaints of tinnitus. Pursuant to the November 2011 Board remand, the Veteran was afforded a VA audiological evaluation. On December 2012 VA audiological evaluation, audiometric testing revealed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 45 60 90 LEFT 35 30 55 75 85 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 82 percent in the left ear. Bilateral sensorineural hearing loss was documented. The examiner opined, in pertinent part, that bilateral hearing loss and tinnitus were not related to the Veteran's in-service noise exposure. His rationale was essentially that although the Veteran had a high probability of noise exposure while on active duty, due to the lack of documented hearing loss and/or tinnitus during service, there was a low probability of hearing loss disability that was related to service. III. Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection can be demonstrated for a disease diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (holding that proof of direct service connection may entail proof that exposure during service caused the malady that appeared many years later); Cosman v. Principi, 3 Vet. App. 503, 505 (1992) (holding that service connection can still be established even when a Veteran did not have a particular condition diagnosed during service or for many years thereafter). In order to establish service connection, the evidence must generally show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Alternatively, under 38 C.F.R. § 3.303(b), the second and, in some cases, the third elements can be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) evidence of a nexus between the present disability and the post-service symptomatology. Barr, 21 Vet. App. at 307. Symptoms, and not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Section 1154(a) requires VA to give "due consideration" to "all pertinent medical and lay evidence" when evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Generally, the Board should determine whether the Veteran's particular disability is the type of disability for which lay evidence is competent, and, if so, weigh that evidence against the other evidence of record in making its determinations. Kahana v. Shinseki, 24 Vet. App. 428, 433 n.4 (2011). The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lastly, a layperson may also be competent to testify to the manifestations of a chronic condition during service or a presumptive period or to continuity of symptomatology. Hickson, 12 Vet. App. at 253. Once evidence is determined to be competent, the Board must determine whether the evidence is credible. In assessing the credibility of the evidence, the Board may properly consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, as well as, if applicable, the demeanor of the witness if oral testimony is given. Caluza, 7 Vet. App. at 511. The Board may also consider the effect of self-interest. Pond v. West, 12 Vet. App. 341, 345 (1999). The Board is responsible for evaluating the evidence of record and assigning due probative weight. Madden v. Grober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); see also Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Upon weighing the evidence, if there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to a veteran. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As noted above, the Veteran's occupation in service, aircraft handler, was one determined to have "highly probable" loud, high frequency noise exposure. Moreover, his statements establish that he was around engine noise and the constant level of noise exposure while handling aircraft are enough to establish an in-service event or injury. First addressing tinnitus, the Veteran's lay statements about the onset of his tinnitus are sufficient to establish that he now has ringing in his ears. He has reported that he had constant, bilateral tinnitus "ringing in his ears" since service. These lay assertions as existence of tinnitus, a condition capable of lay observation, provides competent evidence of a current disability, and the Board finds no reason to question the veracity of the Veteran's assertions in this regard.. The final element of service connection for tinnitus is establishing a nexus between the in-service event or injury and the current disability. The Board concludes that the Veteran has done so in the present case. While there is no indication that the Veteran experienced or was treated for tinnitus during service, as noted, the Veteran's service treatment records are unavailable. The VA audiologist's December 2012 opinion is negative for a nexus between the Veteran's military service and his current tinnitus. The Board finds, however, For the following reason, however, the Board finds that the audiologist's opinion is not entitled to full probative weight. The opinion does not reflect consideration and analysis of the Veteran's competent and credible assertions as the onset and continuity of his tinnitus. Further, the December 2012 opinion relies largely, if not entirely, on the absence of documentation of any in-service treatment and/or complaints, which had been held to be an improper basis of consideration, in isolation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board also notes that the absence of a medical nexus opinion is not fatal to the Veteran's for tinnitus claim as lay evidence may serve as a basis to establish the claim. See Savage v. Grober, 10 Vet. App. 488, 495-97 (1997). Moreover, the Board finds that the Veteran's competent and credible account of tinnitus, to include in-service onset and continuity since separation, to be the most persuasive evidence of the matter at hand. The Board thus finds that the competent, credible, and probative evidence indicates that current diagnosed tinnitus had its onset in-service and that relevant symptoms have persisted since the Veteran's separation from service. Accordingly, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted. Turning next to the Veteran's hearing loss, as indicated above, he likely had significant noise exposure while working on aircraft aboard the USS Ranger and the USS Saipan.. As noted above, an aircraft handler has "highly probable" noise exposure. As a consequence, in-service injury has been established. The evidence must also establish current disability. To have a ratable hearing loss disability for VA compensation purposes, the Veteran must have had since the filing of his claim sufficient hearing loss to satisfy the threshold minimum requirements of 38 C.F.R. § 3.385. According to this regulation, impaired hearing will be considered a disability for compensation purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz is 40 dB or greater; or when the auditory thresholds for at least three of the frequencies are 26 dB or greater; or when speech recognition scores under the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In the present case, the audiograms of record, to include the most recent, December 2012 VA audiogram, reflect that the Veteran has bilateral hearing loss to an extent recognized as a disability for VA purposes. Therefore, a current disability has been established. Service connection is warranted if the current hearing loss can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). For the reasons stated below, the Board ultimately concludes that it is as likely as not that the Veteran's hearing loss was incurred in military service. The VA audiologist concluded that the Veteran's hearing loss was not incurred in military service. However, his opinion relies solely on the fact that there was no in-service hearing loss shown. Thus, the VA audiologist's opinion which appears to rely solely on the absence of service treatment records documenting in-service hearing loss, for the conclusion that his hearing loss did not originate in service is entitled to very little probative value. Specifically, as noted, the Veteran's service treatment records are unavailable due to no fault of the Veteran. While the audiologist apparently relied on information gleaned from secondary documents (after the Veteran's claims file was rebuilt, there is no way to actually determine whether the Veteran experienced a threshold shift during service as a consequence of in-service noise exposure, which may be indicative of noise- induced hearing. Moreover, the VA audiologist did not consider the Veteran's statements that he has experienced diminished hearing since service. The Veteran is competent to testify as to his observations concerning his in-service noise exposure and post-service diminished hearing. Again, as the Board finds no reason to question to question the veracity of these assertions, the Board accepts them as credible. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107; Gilbert, 1 Vet, App. at 53-56. Given VA's heightened duty to assist and to consider carefully the benefit-of-the doubt rule when service records are unavailable , Board finds that the totality of the evidence, to particularly include the Veteran's credible lay assertions in support of his claim, hearing loss was as likely as not incurred in military service Accordingly, and with resolution of all reasonable doubt in the Veteran's favor, service connection for bilateral senorineural hearing loss is also warranted. ORDER Service connection for tinnitus is granted. Service connection for bilateral sensorineural hearing loss is granted. REMAND Unfortunately the Board finds that further RO action on the claim remaining on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. As noted above, in November 2011 the Board reopened the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD, and remanded the claim for service connection, on the merits, for further development, in particular, to attempt to verify the Veteran's in-service stressors, as it was not shown, and the Veteran did not allege, that his stressors were combat related. The Board also directed the RO to accomplish any additional development deemed warranted, to include obtaining a VA examination, if appropriate. On remand, the RO was able to verify the occurrence of a claimed stressor; hence, the Veteran was subsequently scheduled for a VA examination in April 2012. After an examination of the Veteran and a review of the claims file, the examiner diagnosed dementia of the Alzheimer's type, and essentially opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury. The examiner noted that it would be mere speculation to find that the Veteran may have had PTSD at one time. He stated that there were not enough PTSD symptoms to suggest a diagnosis of PTSD. The examiner provided no comment as to any other psychiatric disorder. On this record, the Board finds that further medical opinion is needed in this case. Indeed, while the April 2012 VA examiner stated that there were not enough symptoms noted in the Veteran's psychiatric records to diagnose PTSD at that time, the Board points out that the requirement that a claimant have a current disability before service connection may be awarded for that disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Because, in this case, the Veteran filed the current claim for service connection for PTSD in March 2007, and the medical evidence reflects diagnoses of PTSD and bipolar disorder in 2007, the evidence of record seems sufficient to establish the presence of a current disability within the meaning of McClain, despite the fact that the April 2012 VA examiner appears to indicate that the there were not then sufficient symptoms to render a PTSD diagnosis (and, perhaps, previously diagnosed bipolar disorder, as we1l) As such, the April 2012 opinion is insufficient to resolve the claim for service connection. Therefore, the Board finds that the claims file should be returned to the April 2012 VA examiner for an opinion with respect to whether, at any point pertinent to the appeal, the Veteran had PTSD as a result of the verified in-service stressor, or had bipolar disorder that had its onset in or was otherwise medically-related to service. The RO should only arrange for the Veteran to undergo further examination if the prior examiner is not available, or another examination is deemed necessary. Prior to obtaining further medical opinion, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim remaining on appeal. As indicated, the RO's adjudication of this claim must include consideration of all pertinent evidence added to the claims file since the RO's last adjudication of the claim. Accordingly, this matter is hereby REMANDED for the following: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim remaining on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses from each contacted entity are associated with the claims file, arrange for the psychiatrist who conducted the April 2012 VA examination to review the entire claims file, including a complete copy of this REMAND, to provide an addendum opinion addressing the etiology of previously diagnosed psychiatric disorders. With respect to the diagnosis of PTSD reflected in the Veteran's medical records, the examiner should render an opinion, based on sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) the disorder resulted from the verified in-service stressor (the death of a former comrade). Also, with respect to the diagnosis of bipolar disorder reflected in the Veteran's medical records, the examiner should render an opinion, based on sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) the disorder had its onset in or is,/as otherwise medically-related to service-to include the verified in-service stressor. If the April 2012 examiner is not available, or another examination of the Veteran is deemed warranted, the RO should arrange for such an examination, by an appropriate mental health professional, to obtain a medical opinion incorporating a response to the questions posed above. The entire claims file, to include a complete copy of the REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. It is emphasized that the an opinion addressing the questions posed above must be provided, even if the examiner determines that a diagnosis of either disability is not currently warranted. If the examiner determines that either diagnosis was not valid, or is unable to provide the requested opinion with respect to either disability without resort to speculation, the examiner should clearly so state and explain why. The examiner should set forth all examination findings (if any), along with complete rationale for the conclusions reached, in a printed (typewritten) report. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the matter remaining on appeal in light of all pertinent evidence and legal authority. 6. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). The RO is reminded that this appeal has been advanced on the Board's docket. ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs